June 24, 2008

Executive Order FAQs for Federal Contractors

President Bush recently signed an amendment to Executive Order No. 12989, mandating that federal contractors use E-Verify to confirm that their employees are lawfully eligible to work. A proposed rule implementing the executive order was published in the Federal Register shortly thereafter. The United States Citizenship and Immigration Services (USCIS) today published an FAQ addressing several important questions raised by federal contractors as a result of both the order and the rule.

The FAQ's make clear that until the proposed rule is published as a final rule, no federal contractors will be required to enroll in E-Verify. This is also true for the other changes made by the rule, such as the requirement that existing employees working on a federal contract covered by the rule be run through E-Verify. For now, the E-Verify program remains a completely voluntary program for employers, including federal contractors. The FAQs point out that there may be substantive changes to the rule before it becomes final, and that even under the proposed rule as published, federal contractors would only be required to enroll in E-Verify when they enter into a federal contract or subcontract which mandates participation in E-Verify as a term of the contract.

While this will change once the final rule is published, all employers currently participating in E-Verify are prohibited from running existing employees through E-Verify. Once the final rule is published, a new MOU will be available reflecting the E-Verify obligations of covered federal contractors.

For a more detailed analysis of the Executive Order, please refer to our GT Alert: http://www2.gtlaw.com/pub/alerts/2008/0600c.pdf. 

GT will continue to monitor developments surrounding the Executive Order and provide timely updates.